7.  The applicant was born in 1953. At the time of the introduction of his application, the applicant was serving a prison sentence in the Netherlands.
8.  On or around 26 January 1995 suspicions arose that the applicant, who at that time was serving a prison sentence in the Marwei penitentiary in Leeuwarden, had been involved in giving a false tip-off by telephone to the Leeuwarden police to the effect that three named detainees were planning to escape from prison by taking hostages. Thereafter, and in order to secure order, peace and safety in the penitentiary, the applicant’s telephone conversations were tapped and recorded on tape. These taped conversations were kept so as to allow the authorities to establish – if such a situation were to arise again – whether the applicant had been involved in giving any further false telephone tip-offs.
9.  On 3 October 1995, as a result of the detonation of an explosive device placed in her car, Ms X – the applicant’s former partner – suffered slight injuries. Her son, Mr Y, suffered serious injuries necessitating the amputation of the lower part of his left leg.
10.  At the time of the explosion, the applicant was still in prison. As it was suspected that he was involved in the bomb attack, the national public prosecutor (landelijk officier van justitie) ordered that the applicant’s recorded telephone conversations be made available to the criminal investigation into the bomb attack.
11.  On 16 May 1998 the applicant was summoned to appear before the Haarlem Regional Court (arrondissementsrechtbank) to stand trial on charges of, inter alia, (attempted) premeditated grievous bodily harm, causing an explosion endangering property and life, making a threat to kill and various counts of fraud.
12.  On 22 August 1996 the Haarlem Regional Court convicted the applicant of making a threat to kill and one count of fraud, acquitted him on the remaining charges and sentenced him to two years’ imprisonment. Both the applicant and the public prosecutor filed an appeal with the Amsterdam Court of Appeal (gerechtshof).
13.  In its judgment of 4 November 1997, following hearings held on 20 May and 21 October 1997, the Amsterdam Court of Appeal quashed the judgment of 22 August 1996, convicted the applicant of complicity in (attempted) premeditated grievous bodily harm, causing an explosion endangering property and life, and making a threat to kill or, in any event, to inflict grievous bodily harm. He was also convicted of several counts of fraud. The applicant was sentenced to nine years’ imprisonment. As regards the determination of the applicant’s sentence, the Court of Appeal held, inter alia, that the applicant, over a period of several months, had continuously threatened Ms X by telephone and had eventually carried out his threats by organising – from his place of detention – the placing of a bomb under her car. The detonation of this bomb had caused injuries to Ms X and Mr Y, necessitating the amputation of the lower part of the latter’s leg. The court noted that it was only as a result of the administration of rapid and adequate first aid that Mr Y had not bled to death. In addition, the explosion had caused collateral damage to another car as well as to windows of nearby houses and there had been a real danger that the explosion could also have (fatally) injured bystanders. The court further noted that the applicant had already been convicted in the past of having deliberately shot Ms X in the leg.
14.  The Court of Appeal based the applicant’s conviction on, inter alia, statements given by the applicant, a co-detainee, Mr Y, Ms X and her neighbours, several telephone conversations between the applicant and Ms X that had been tape-recorded by the latter, and one of the applicant’s telephone conversations that had been tapped and recorded prior to 3 October 1995 by the authorities of the penitentiary where the applicant was detained, namely a conversation between the applicant and his sister in which he warned his sister never to approach or get into Ms X’s car.
15.  The Court of Appeal rejected the defence’s argument that the telephone conversations which had been tapped and recorded by the prison authorities before 3 October 1995 should be disregarded as unlawfully obtained evidence. Noting the reasons for which the prison authorities had decided to tap and record the applicant’s telephone conversations, the court held that the impugned measures served a lawful purpose, namely the preservation of order, peace and security within the penitentiary. Furthermore, the measures also complied with the requirements of proportionality. It further held that, although the internal penitentiary regulations prescribed the immediate erasure of recorded telephone conversations, a reasonable interpretation of the applicable rules in relation to the aims pursued implied that the recorded conversations could be kept, since there were concrete indications of an ongoing escape plan. When fresh suspicion arose that the applicant was involved in another criminal offence, the information lawfully obtained on the basis of internal prison rules could be made available to the police for the purposes of the criminal investigation into that offence. The Court of Appeal referred in this connection to the general obligation contained in Article 160 of the Code of Criminal Procedure (Wetboek van Strafvordering) to report, inter alia, criminal offences involving a danger to life, and to the very serious nature of the offence at issue.
16.  The applicant’s subsequent appeal in cassation was rejected by the Supreme Court (Hoge Raad) on 2 March 1999.
17.  As regards the applicant’s complaint that his telephone conversations had been unlawfully tapped, recorded and kept by the penitentiary authorities, the Supreme Court held:
“3.2.  The complaint has to be considered in the following framework of legal rules. Article 15 § 4 of the Constitution (Grondwet) ... Article 8 [of the Convention] ... Article 92a of the ... applicable [1953] Prison Rules (Gevangenismaatregel) ... Article 4 § 1 of the [1953] Prison Rules ... [the] circular no. 1183/379 of the Deputy Minister of Justice (Staatssecretaris van Justitie) of 1 April 1980 ... [and] an internal regulation issued by the Governor of the Marwei penitentiary under Article 23 of the [1951] Prison Act (Beginselenwet Gevangeniswezen) ... 3.3.  Under the heading ‘The lawfulness of the evidence obtained’ ... the Court of Appeal found that the recording of the applicant’s telephone conversations conducted in the Marwei penitentiary served a lawful purpose, namely maintaining order, peace and security in the penitentiary, and further complied with the requirements of proportionality. This finding does not reveal any incorrect interpretation of the law. In the first place, this finding recognises that the recording can be justified in view of the aims set out in Article 8 § 2 of [the Convention], in particular the prevention of disorder. In the second place, it recognises that the Court of Appeal has also examined whether in a democratic society the interference at issue with the right set out in Article 8 § 1 of [the Convention] was necessary for attaining the stated aim. In so far as that finding further established that the tape recording pursued this aim and that the interference was also necessary, these matters are factual and are readily understandable. 3.4.  This recording is further provided for by law as required by Article 8 § 2 of [the Convention]. Indeed, the system of legal rules set out under 3.2 complies with the requirements of accessibility and foreseeability. The system comprises regulations of which the most important features have been published in generally accessible sources or have been deposited in places accessible to detainees. They provide a sufficiently clear indication to detainees about the fact that telephone conversations can be tapped and recorded and the reasons for this. 3.5.  The above considerations lead to the conclusion that the finding of the Court of Appeal as to the lawfulness of the tape recording can be upheld. Questions still remain about the finding of the Court of Appeal as regards the keeping of the recordings and the failure to erase them immediately, the ... making available to the criminal investigation authorities of these tape recordings, ... their being listened to by the latter for the purposes of the investigation into ... [the car bomb attack] and the subsequent use in evidence of a document containing a transcript of one of the recorded telephone conversations (evidence item 23). It must first be noted that the cassation complaint apparently only seeks to challenge the finding of the Court of Appeal as to the use in evidence of the formal record (proces-verbaal) containing the transcript of a telephone conversation between the [applicant] and his sister (evidence item 23). 3.6.  The internal regulation set out under 3.2 provides that tape recordings are not to be kept and will be immediately erased. Against the background of a reasonable interpretation, it is difficult to explain that provision otherwise than to mean that the tape recordings must no longer be kept and the tapes must be erased as soon as the danger giving rise to the recording has ceased to exist. Under the heading ‘The lawfulness of the evidence obtained’ ... the Court of Appeal found that the telephone conversation used in evidence had been recorded, inter alia, after suspicions had arisen that the [applicant] was involved in giving a false telephone tip-off about an intended hostage-taking and that this tape recording had been kept in order to be able to establish – if such a situation were to arise – whether the [applicant] was again involved in giving false telephone tip-offs affecting the order, peace and security of the penitentiary. It follows from this that, according to the Court of Appeal – and quite apart from the existence of any concrete indication about an escape plan ... – the keeping of and failure to erase the recordings occurred against the background of the danger which gave rise to the decision to tap the conversations. The Court of Appeal thus found that there was no violation of the relevant internal regulation. Without stating further reasons, this finding can be readily understood. 3.7.  Taking into account the above considerations, the handing over of the tapes to the national public prosecutor for the purpose of the criminal investigation was not unlawful. Suspicions against the [applicant] had arisen that from his place of detention he was involved in a bomb attack. When this official had become aware of the existence of those tapes, it was not unlawful to hand them over, bearing in mind the provisions of Article 162 § 2 of the Code of Criminal Procedure and the fact that, failing a voluntary surrender [of the tapes], the judicial authorities could have had recourse to seizure (inbeslagname).